EXHIBIT 10.56
July 19, 2002
Xxxxxx X. Xxxxxx
0000 Xxxx 000xx Xxxxxx
Xxxxx, XX 00000
Re: First Amendment to the Retention Bonus Agreement
Dear Xx. Xxxxxx:
The Retention Bonus Agreement between you and Xxxxxxxx
Communications Group, Inc., a Delaware corporation, executed on January 31,
2002, is hereby amended by replacing the entire Retention Bonus Agreement with
the following:
The following sets forth the First Amendment to the Retention
Bonus Agreement (the "Agreement") between you and Xxxxxxxx Communications Group,
Inc., a Delaware corporation ("WCG") and Xxxxxxxx Communications, LLC,
(collectively, the "Company") regarding the terms of the retention bonus (the
"Retention Bonus") that you may be eligible to receive in accordance with the
terms and conditions set forth below. This Agreement is effective as of July 14,
2002, the date of approval by the Board. The Retention Bonus is in addition to,
and not in substitution for, any other compensation or benefits which you are
eligible to earn from the Company, and this Agreement is in addition to, and not
in substitution for, any other agreements between you and the Company.
It is critically important to the Company's operations,
strategies, business plans and prospects that the Company attract and retain
superior and highly qualified executive employees. Accordingly, the Company is
entering into this Agreement with you to ensure that the Company has the benefit
of your services as an executive during the term of this Agreement and to
provide you with additional incentives to assist in the process of maximizing
enterprise value.
1. DEFINITIONS. For purposes of this Agreement, the following
capitalized words that are not otherwise defined in the text of the Agreement
shall have the meanings set forth below:
"Affiliate" has the meaning ascribed to such term in Rule
12b-2 of the General Rules and Regulations of the Securities Exchange Act of
1934, as amended from time to time, or any successor act thereto.
"Base Salary" means the amount you are entitled to receive as
wages or salary on an annualized basis, excluding all bonus, overtime and
incentive compensation, payable by the Company as consideration for your
services, as determined on the date immediately preceding termination of
employment, except that in the case of a termination of employment for Good
Reason, Base Salary shall be determined as of the date immediately before the
event which constitutes Good Reason.
"Board" means the Board of Directors of WCG.
"Cause" means a termination of your employment by the Company
due to (a) willful failure by you substantially to perform your duties, other
than any such failure resulting from your death or Disability, or (b) gross
negligence or willful misconduct by you which results in a significantly adverse
effect upon the Company or a Subsidiary.
"Change in Control" has the meaning set forth in the Xxxxxxxx
Communications Group, Inc. Change in Control Severance Protection Plan I, as
amended and restated effective July 14, 2002.
"Code" means the Internal Revenue Code of 1986, as amended.
"Compensation Committee" means the Compensation Committee of
the Board.
"Disability" has the meaning ascribed to such term in the
Company's governing long-term disability plan, or if no such plan is applicable
to you, at the discretion of the Board.
"Effective Date" means December 31, 2001.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Executive Loan" means the loan(s) made by the Company to you
as described on Exhibit A attached hereto.
"Final Payment Date" means (a) the later of December 31, 2005,
or the fourth anniversary of the Restructuring, if a Qualifying Event does not
occur prior to such date, or (b) if a Qualifying Event occurs prior to the date
provided in (a), the date of the Qualifying Event.
"Good Reason" means the occurrence of any of the following
events, unless you have consented thereto: (a) a material change in your duties
from those assigned to you, unless associated with your bona fide promotion and
a commensurate increase in your compensation, in which case you shall be deemed
to consent, or (b) a significant reduction in the authority and responsibility
assigned to you, or (c) your removal from, or failure to reelect you to, any
corporate office of the Company or an
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Affiliate to which you may have been elected, unless associated with your bona
fide promotion and a commensurate increase in your compensation or in connection
with your election to a corresponding or higher office of the Company or an
Affiliate, in each which case you shall be deemed to consent, or (d) reduction
of your Base Salary, or (e) termination of any of the Incentive Plans in which
you are participating, unless such plan is replaced by a successor plan
providing incentive opportunities and awards at least as favorable to you as
those provided in the plan being terminated, or (f) amendment of any of the
Incentive Plans so as to provide for incentive opportunities and awards less
favorable to you than those provided in the plan being amended, or (g) failure
by the Company or an Affiliate to continue you as a participant in any of the
Incentive Plans on a basis comparable to the basis on which other similarly
situated eligible employees participate in such plan, or (h) except in relation
to a wage freeze applicable to all employees of the Company or an Affiliate,
modification of the administration of any of the Incentive Plans so as to
adversely affect the level of incentive opportunities or awards actually
received by you, (i) a requirement by the Company or an Affiliate that your
principal duties be performed at a location more than fifty (50) miles from the
location where you are employed, except for travel reasonably required in the
performance of your duties, or (j) a determination by you (which determination
will be presumed to be Good Reason and presumed to have been made in good faith
unless otherwise shown by the Company in each case by clear and convincing
evidence) that a change in circumstances has occurred, including, without
limitation, a change in the scope of the business or other activities for which
you are responsible, which has rendered you substantially unable to carry out,
has substantially hindered your performance of, or has caused you to suffer a
substantial reduction in, any of the authorities, powers, functions,
responsibilities or duties attached to the position held by you, which situation
is not remedied within ten (10) calendar days after written notice to the
Company from you of such determination.
"Incentive Plan" means any of the Company's stock option,
bonus, sales incentive, and other incentive plans in existence now or
immediately prior to a termination of employment or any additional or successor
plans providing substantially equivalent or better incentive opportunities.
"Involuntary Termination" means (a) the termination of your
employment by the Company other than for Cause, (b) your death, (c) the
termination of your employment due to your Disability, or (d) the resignation of
your employment by you for Good Reason.
"Normal Retirement" means retirement at age sixty-five (65) or
earlier as determined by the Board in its discretion.
"Payment Date" means (a) December 31 of each year until the
Restructuring, (b) the anniversary date of the Restructuring for each year
following the Restructuring until the Final Payment Date, and (c) the Final
Payment Date.
"Qualifying Event" means
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(a) Involuntary Termination;
(b) Normal Retirement;
(c) Any rejection of this Agreement (including
confirmation of a deemed rejection) in any voluntary or involuntary proceeding
by or against the Company under the federal bankruptcy laws; or
(d) a Change in Control, provided however that a
Change in Control shall only constitute a Qualifying Event with respect to any
unpaid, accrued payments of principal and interest, including, without
limitation:
(i) Payments accrued for any year in which a
Change in Control takes place. If a Change in Control occurs prior to the
Payment Date for any particular year, the Restructuring Bonus for that year
shall be pro rated based on the timing of the Change in Control; or
(ii) Payments with respect to prior
Retention Bonus amounts (including deferred amounts) for which payment has not
yet been made.
In the event that a Change in Control does occur, any
remaining Retention Bonus amounts will continue to be governed in accordance
with this Agreement, and in the event of a second Qualifying Event, will be
treated in accordance with the provisions herein applicable to the Retention
Bonus.
"Restructuring" means a confirmation of a plan of
reorganization of the Company or that is in a proceeding involving either the
Company under Chapter 11 of the Bankruptcy Code (11 U.S.C. Section 1101, et
seq.).
"Subsidiary" means any corporation, partnership or joint
venture in which the Company, directly or indirectly, holds a majority of the
voting power of such corporation's outstanding shares of capital stock or a
majority of the capital or profits interests of such partnership or joint
venture.
2. TERM. The term of this Agreement (the "Term") shall
commence on the Effective Date and shall continue until the Final Payment Date.
3. RETENTION BONUS. In consideration of, and subject to, your
continued employment with the Company during the Term, the Company will pay you
a Retention Bonus in the amount set forth on Exhibit A attached hereto. The
Retention Bonus payable on February 15, 2002, is for services rendered during
the year 2001. Retention Bonuses payable on December 31, 2002, and subsequent
years are for services rendered during the year the Retention Bonus becomes
payable. Retention Bonus payments will be made by the Company in the amounts set
forth on Exhibit A as soon as practicable after each Payment Date while you
remain in the continued employ of the
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Company, but in no event shall such payments be made more than thirty (30) days
after the respective Payment Dates; provided, however, that the Company shall
not be obligated to make a Retention Bonus payment if the making of such payment
would violate a covenant or give rise to a default under any agreement to which
the Company is a party or by which it may be bound and, in such event, the
Company shall defer the payment of such vested amount until payment is permitted
under any such agreement. The right to receive a Retention Bonus payment is
earned as of the Payment Date. Notwithstanding the foregoing, if there occurs a
Qualifying Event during the Term of this Agreement and you are in the employ of
the Company immediately prior to such Qualifying Event, any remaining Retention
Bonus payments will be paid to you as soon as practicable, but in no event later
than thirty (30) days following the date of such Qualifying Event. If (a) you
are in the employ of the Company at the commencement of any voluntary or
involuntary proceeding by or against the Company under the federal bankruptcy
laws, and (b) this Agreement is rejected (including confirmation of a deemed
rejection )in such proceeding, such rejection will constitute a Qualifying Event
immediately prior to the commencement of such proceeding for purposes of this
Agreement, and you will be entitled to setoff your claim for any remaining
Retention Bonus payments against the balance outstanding on your Executive Loan.
4. APPLICATION OF RETENTION BONUS TO REPAY EXECUTIVE LOAN. So
long as there remains a balance outstanding on your Executive Loan, any
Retention Bonus payments by the Company hereunder will be applied to the
outstanding principal of your Executive Loan. You hereby authorize the Company
to withhold the Retention Bonus payments and apply them to the Executive Loan.
At such time as there is no balance outstanding on your Executive Loan, the
Company will pay each Retention Bonus payment to you in a lump sum cash amount
in accordance with the terms of Section 3.
5. EFFECT OF TERMINATION OF EMPLOYMENT OTHER THAN INVOLUNTARY
TERMINATION. In the event that your employment with the Company terminates for
any reason other than an Involuntary Termination prior to any of the Payment
Dates, you shall forfeit your right to any portion of the Retention Bonus not
yet earned.
6. OPTION TO DEFER RETENTION BONUS; ROLLING DEFERRAL OPTION.
No later than January 31, 2002, you may elect to defer the Payment Date for the
February 15, 2002 Payment Date and/or the December 31, 2002 Payment Date to a
date no earlier than twelve (12) months after such Payment Date, but in no event
later than the Final Payment Date. In addition, you may elect to defer Retention
Bonus payments previously deferred to a date no earlier than twelve (12) months
after such deferred Payment Date but in no event later than the Final Payment
Date. The Company will issue a Form W-2 Wage and Tax Statement with respect to
any Retention Bonus payment so deferred and you will pay in cash to the Company
on the Payment Date amounts required to pay the Medicare portion of FICA due on
the deferred Retention Bonus. The deferral of all payments previously deferred
will end at the time of a Restructuring, at which time all deferred Retention
Bonus amounts will be paid, in addition to any amounts owed in accordance with
Section 13 and Section 14.
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7. APPLICATION OF ERISA. All benefits to which you may be
entitled under this Agreement are unfunded and are payable out of the Company's
general funds. To the extent this Agreement is considered to be an "employee
pension benefit plan" as defined in Section 3(2) of ERISA, i.e., due to the
deferral option in Section 6 above, this Agreement is part of an arrangement
intended to qualify as an unfunded plan maintained primarily for the purpose of
providing deferred compensation for a select group of management or highly
compensated employees, within the meaning of Sections 201(2), 301(3) and
401(a)(1) of ERISA. The Compensation Committee shall serve as the plan
administrator with respect to this Agreement and all interpretations of this
Agreement, and questions concerning its administration and application, shall be
determined by the Compensation Committee (or its delegate).
8. CLAIMS PROCEDURE.
(a) INITIAL CLAIM FOR BENEFITS. In the event the Company fails
to pay a benefit hereunder when due and you believe you were entitled to receive
such a benefit, you may submit your claim for benefits to the Compensation
Committee (or to such other person as may be designated by the Compensation
Committee) in writing in such form as is permitted by the Company. You will have
no right to seek review of a denial of benefits, or to bring any action in any
court to enforce a claim for benefits prior to your filing a claim for benefits
and exhausting your rights to review under Sections 8(a) and 8(b). When a claim
for benefits has been filed properly, such claim for benefits shall be evaluated
and you will be notified of the approval or the denial within ninety (90) days
after the receipt of such claim unless special circumstances require an
extension of time for processing the claim. If such an extension of time for
processing is required, written notice of the extension shall be furnished to
you prior to the termination of the initial ninety (90) day period which shall
specify the special circumstances requiring an extension and the date by which a
final decision will be reached (which date shall not be later than one hundred
and eighty (180) days after the date on which the claim was filed). You will be
given a written notice in which you will be advised as to whether the claim is
granted or denied, in whole or in part. If a claim is denied, in whole or in
part, you will be given written notice which shall contain (a) the specific
reasons for the denial, (b) references to pertinent provisions of this Agreement
upon which the denial is based, (c) a description of any additional material or
information necessary to perfect the claim and an explanation of why such
material or information is necessary and (d) your rights to seek review of the
denial.
(b) REVIEW OF CLAIM DENIAL. If a claim is denied, in whole or
in part, you will have the right to request that the Compensation Committee
review the denial, provided that you file a written request for review with the
Compensation Committee within sixty (60) days after the date on which you
received written notification of the denial. You (or your duly authorized
representative) may review pertinent documents and submit issues and comments in
writing to the Compensation Committee. Within sixty (60) days after a request
for review is received, the review shall be made and you will be advised in
writing of the decision on review, unless special circumstances require an
extension of time for processing the review, in which case you will be given a
written
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notification within such initial sixty (60) day period specifying the reasons
for the extension and when such review shall be completed (provided that such
review shall be completed within one hundred and twenty (120) days after the
date on which the request for review was filed). The decision on review shall be
forwarded to you in writing and shall include specific reasons for the decision
and references to the provisions of this Agreement upon which the decision is
based. If you fail to file a request for review in accordance with the
procedures herein outlined, you will have no rights to review and will have no
right to bring action in any court and the denial of the claim shall become
final and binding on all persons for all purposes.
9. SUCCESSOR TO COMPANY. This Agreement shall be binding on
any successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) which becomes such after a Change in Control of the Company has
occurred to all or substantially all of the business and/or assets of the
Company in the same manner and to the same extent that the Company would be
obligated under this Agreement if no succession had taken place. In the case of
any transaction in which a successor (which becomes such after a Change in
Control of the Company has occurred) would not by the foregoing provision or by
operation of law be bound by this Agreement, the Company shall require such
successor expressly and unconditionally to assume and agree to perform the
Company's obligations under this Agreement, in the same manner and to the same
extent that the Company would be required to perform if no such succession had
taken place. The term "Company," as used in this Agreement, shall mean the
Company and any successor or assignee to the business or assets which by reason
hereof becomes bound by this Agreement.
10. RESTRICTIONS ON ALIENATION OF BENEFITS. No right or
benefit under this Agreement shall be subject to anticipation, alienation, sale,
assignment, pledge, encumbrance or charge, and any attempt to anticipate,
alienate, sell, assign, pledge, encumber or charge the same shall be void.
11. NOTICES. For the purpose of this Agreement, notices and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered by hand, sent by
telecopier or mailed by United States certified mail, return receipt requested,
postage prepaid, addressed to the Chief Executive Officer, Xxxxxxxx
Communications Group, Inc., One Technology Center, Tulsa, Oklahoma 74103,
telecopier: (000) 000-0000, with a copy to the General Counsel of the Company,
or to you at the address set forth on the first page of this Agreement or to
such other address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be effective
only upon receipt.
12. GENERAL PROVISIONS.
(a) NO RIGHTS TO CONTINUED EMPLOYMENT. Neither this Agreement
nor any of the rights or benefits evidenced hereby shall confer upon you any
right to continuance of employment by the Company or interfere in any way with
the right of
7
the Company to terminate your employment, subject to the provisions of Sections
3 and 4 above, for any reason, with or without Cause.
(b) AMENDMENTS, WAIVERS. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing by the parties hereto. No waiver by either party hereto at
any time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time.
(c) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
(d) WITHHOLDING. The Company may withhold from any amounts
paid to you hereunder all applicable federal, state, city and/or other tax
withholdings.
(e) HEADINGS. The headings contained in this Agreement are
intended solely for convenience of reference and shall not affect the rights of
the parties to this Agreement.
(f) GOVERNING LAW. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the State of
Delaware, without regard to choice of law principles.
13. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event that a Retention Bonus payment is made under this
Agreement, in the event there is a setoff under Section 4, or in the event of
any Interest Payment under Section 14, then you shall be entitled to receive an
additional payment or payments in the amount of all federal, state and local
income and employment taxes (including any interest or penalties imposed with
respect to such taxes) (collectively, the "Income Tax Payment") due with regard
to any Retention Bonus or Interest Payment paid or setoff under this Agreement.
The Income Tax Payment shall be in an amount such that, after payment by you of
all such taxes (including any interest or penalties imposed with respect to such
taxes), including any income tax and employment tax imposed upon the Income Tax
Payment, you retain an amount of the Income Tax Payment equal to the income tax
and employment tax imposed upon such Payment.
(b) Anything in this Agreement to the contrary
notwithstanding, in the event that it shall be determined (as hereafter
provided) that any payment (other than the Gross-Up payments provided for in
this Section 13) or distribution by the Company or any of its Affiliates to you
or for your benefit, whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement, including but not limited to payments
made pursuant to Section 13(a) and Section 14 of this agreement, or otherwise
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pursuant to or by reason of any other agreement, policy, plan, program or
arrangement, including without limitation any stock option, performance share,
performance unit, stock appreciation right or similar right, or the lapse or
termination of any restriction on or the vesting or exercisability of any of the
foregoing (a "Payment"), would be subject to the excise tax imposed by Section
4999 of the Code (or any successor provision thereto) by reason of being
considered "contingent on a change in ownership or control" of the Company,
within the meaning of Section 280G of the Code (or any successor provision
thereto) or to any similar tax imposed by state or local law, or any interest or
penalties with respect to such tax (such tax or taxes, together with any such
interest and penalties, being hereafter collectively referred to as the "Excise
Tax"), then you shall be entitled to receive an additional payment or payments
(collectively, a "Gross-Up Payment"). The Gross-Up Payment shall be in an amount
such that, after payment by you of all such taxes (including any interest or
penalties imposed with respect to such taxes), including any Excise Tax imposed
upon the Gross-Up Payment, you retain an amount of the Gross-Up Payment equal to
the Excise Tax imposed upon the Payment.
(c) Subject to the provisions of Section 13(g), all
determinations required to be made under this Section 13, including whether an
Excise Tax or Income Tax Payment is payable by you and the amount of such Excise
Tax or Income Tax Payment, and whether a Gross-Up Payment is required to be paid
by the Company to you and the amount of such Gross-Up Payment, if any, shall be
made by a nationally recognized accounting firm (the "Accounting Firm") selected
by you in your sole discretion. You shall direct the Accounting Firm to submit
its determination and detailed supporting calculations to both the Company and
you within thirty (30) calendar days after the Termination Date, if applicable,
and any such other time or times as may be requested by you or the Company. If
the Accounting Firm determines that any Excise Tax or Income Tax Payment is
payable by you, the Company shall pay the required Gross-Up Payment or Income
Tax Payment to you within five (5) business days after receipt of such
determination and calculations with respect to any Payment to you. If the
Accounting Firm determines that no Excise Tax or income tax is payable by you,
it shall, at the same time as it makes such determination, furnish the Company
and you an opinion that you have substantial authority not to report any Excise
Tax or income tax on your federal, state or local income or other tax return. As
a result of the uncertainty in the application of Section 4999 of the Code (or
any successor provision thereto) and the possibility of similar uncertainty
regarding applicable federal, state or local tax law at the time of any
determination by the Accounting Firm hereunder, it is possible that Income Tax
Payments or Gross-Up Payments which will not have been made by the Company
should have been made (an "Underpayment"), consistent with the calculations
required to be made hereunder. In the event that the Company exhausts or fails
to pursue its remedies pursuant to Section 13(g) and you thereafter are required
to make a payment of any Excise Tax or income tax, you shall direct the
Accounting Firm to determine the amount of the Underpayment that has occurred
and to submit its determination and detailed supporting calculations to both the
Company and you as promptly as possible. Any such Underpayment shall be promptly
paid by the Company to, or for the benefit of, you within five (5) business days
after receipt of such determination and calculations.
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(d) You and the Company shall each provide the Accounting Firm
with access to and copies of any books, records and documents in your possession
or in the possession of the Company, as the case may be, reasonably requested by
the Accounting Firm, and otherwise cooperate with the Accounting Firm in
connection with the preparation and issuance of the determinations and
calculations contemplated by Section 13(c). Any determination by the Accounting
Firm as to the amount of the Income Tax Payment or Gross-Up Payment shall be
binding upon you and the Company.
(e) The federal, state and local income or other tax returns
filed by you shall be prepared and filed on a consistent basis with the
determination of the Accounting Firm with respect to the Excise Tax and income
tax payable by you. You shall make proper payment of the amount of any Excise
Payment and income tax, and at the request of the Company, provide to the
Company true and correct copies (with any amendments) of your federal income tax
return as filed with the Internal Revenue Service ("IRS") and corresponding
state and local tax returns, if relevant, as filed with the applicable taxing
authority, and such other documents reasonably requested by the Company,
evidencing such payment. If prior to the filing of your federal income tax
return, or corresponding state or local tax return, if relevant, the Accounting
Firm determines that the amount of the Gross-Up Payment or income tax should be
reduced, you shall within five (5) business days pay to the Company the amount
of such reduction.
(f) The fees and expenses of the Accounting Firm for its
services in connection with the determinations and calculations contemplated by
Section 13(c) shall be borne by the Company. If such fees and expenses are
initially paid by you, the Company shall reimburse you the full amount of such
fees and expenses within five (5) business days after receipt from you of a
statement therefor and reasonable evidence of your payment thereof.
(g) You shall notify the Company in writing of any claim by
the IRS or any other taxing authority that, if successful, would require the
payment by the Company of a Gross-Up Payment or Income Tax Payment. Such
notification shall be given as promptly as practicable but no later than ten
(10) business days after you actually receive notice of such claim and you shall
further apprise the Company of the nature of such claim and the date on which
such claim is requested to be paid (in each case, to the extent known by you).
You shall not pay such claim prior to the earlier of (i) the expiration of the
thirty (30) calendar-day period following the date on which he gives such notice
to the Company and (ii) the date that any payment of amount with respect to such
claim is due. If the Company notifies you in writing prior to the expiration of
such period that it desires to contest such claim, you shall:
(i) provide the Company with any written records or
documents in your possession relating to such claim reasonably
requested by the Company;
(ii) take such action in connection with contesting
such claim as the Company shall reasonably request in writing
from time to time,
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including without limitation accepting legal representation
with respect to such claim by an attorney competent in respect
of the subject matter and reasonably selected by the Company;
(iii) cooperate with the Company in good faith in
order effectively to contest such claim; and
(iv) permit the Company to participate in any
proceedings relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including interest and penalties) incurred in connection with such
contest and shall indemnify and hold you harmless, on an after-tax basis, for
and against any Excise Tax or income tax, including interest and penalties with
respect thereto, imposed as a result of such representation and payment of costs
and expenses. Without limiting the foregoing provisions of this Section 13(g),
the Company shall control all proceedings taken in connection with the contest
of any claim contemplated by this Section 13(g) and, at its sole option, may
pursue or forego any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim (provided,
however, that you may participate therein at your own cost and expense) and may,
at its option, either direct you to pay the tax claimed and sue for a refund or
contest the claim in any permissible manner, and you agree to prosecute such
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs you to pay the tax
claimed and sue for a refund, the Company shall advance the amount of such
payment to you on an interest-free basis and shall indemnify and hold you
harmless, on an after-tax basis, from any Excise Tax or income tax or other tax,
including interest or penalties with respect thereto, imposed with respect to
such advance; and provided further, however, that any extension of the statute
of limitations relating to payment of taxes for your taxable year with respect
to which the contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, the Company's control of any such contested claim
shall be limited to issues with respect to which a Gross-Up Payment or Income
Tax Payment would be payable hereunder and you shall be entitled to settle or
contest, as the case may be, any other issue raised by the IRS or any other
taxing authority.
(h) If, after the receipt by you of an amount advanced by the
Company pursuant to Section 13(g), you receive, or are entitled to receive, any
refund with respect to such claim, you shall (subject to the Company's complying
with the requirements of Section 13(g)) promptly pay to the Company the amount
of such refund (together with any interest paid or credited thereon after any
taxes applicable thereto). You will be deemed to have received a refund when you
are entitled to such refund, even if you elect to apply it against future tax
liability. If, after the receipt by you of an amount advanced by the Company
pursuant to Section 13(g), a determination is made that you shall not be
entitled to any refund with respect to such claim and the Company does not
notify you in writing of its intent to contest such denial or refund prior to
the expiration of thirty (30)
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calendar days after such determination, then such advance shall be forgiven and
shall not be required to be repaid and the amount of any such advance shall
offset, to the extent thereof, the amount of Gross-Up Payment or Income Tax
Payment required to be paid by the Company to you pursuant to this Section 13.
(i) The Gross-Up Payment provided in this Section 13, and
similar provisions provided in the Xxxxxxxx Communications Group, Inc. Change in
Control Severance Protection Plan I and the Xxxxxxxx Communications Group, Inc.
Restructuring Incentive Plan provided to certain executives shall be read in
conjunction with each other so that no duplication of payments shall be made.
14. INTEREST PAYMENTS. For interest accrued with respect to
periods beginning on or after January 1, 2002, provided you remain employed by
the Company, unless your employment with the Company has terminated in a
Qualifying Event, any interest payment amounts owed by you under the Executive
Loan (the "Interest Payments") shall be reimbursed by the Company to you within
five (5) business days after you furnish adequate proof of such Interest Payment
to the Company. No payment on the Executive Loan shall become due without an
Interest Payment also becoming due and owed by the Company to the Executive.
15. SEVERABILITY. Each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law.
In the event that any provision of this Agreement shall be determined to be
unlawful, such provision shall be deemed severed from this Agreement, but every
other provision of the Agreement shall remain in full force and effect, and in
substitution for any such provision held unlawful, there shall be substituted a
provision of similar import reflecting the original intention of the parties
hereto to the extent permissible under law.
16. REJECTION OF THIS AMENDMENT. In the event that this
Agreement, as amended, shall be set aside or rejected, including, without
limitation, in any proceeding under the federal bankruptcy laws, the parties
hereto agree to be governed by the terms of the Retention Bonus Agreement in
effect prior to any such rejected amendment.
12
If this Agreement sets forth our agreement on the subject
matter hereof, please sign and return to the Company the enclosed copy of this
letter, which will then constitute our agreement on this subject.
Sincerely,
Xxxxxxxx Communications Group, Inc.
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Title: General Counsel and Secretary
----------------------------------
Xxxxxxxx Communications, LLC
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Title: General Counsel and Secretary
----------------------------------
AGREED TO AS OF THIS 19TH
DAY OF JULY, 2002.
-----------------------
Signature
/s/ XXXXXX X. XXXXXX
-----------------------
Xxxxxx X. Xxxxxx
13
EXHIBIT A
SCHEDULE OF RETENTION BONUS PAYMENTS
PAYMENT DATE UNTIL A
RESTRUCTURING OCCURS RETENTION BONUS AMOUNT
--------------------- ----------------------
2/15/02 $1,120,765.96
12/31/02 $1,120,765.96(1)
12/31/03 $1,120,765.96(1)
12/31/04 $1,120,765.96(1)
12/31/05 $1,120,765.96(1)
PAYMENT DATE FOLLOWING
A RESTRUCTURING RETENTION BONUS AMOUNT
---------------------- ----------------------
FIRST ANNIVERSARY OF RESTRUCTURING ONE-FOURTH (1/4) OF THE TOTAL OF ALL
RETENTION BONUS AMOUNTS UNPAID PRIOR TO
THE RESTRUCTURING.
SECOND ANNIVERSARY OF RESTRUCTURING ONE-FOURTH (1/4) OF THE TOTAL OF ALL
RETENTION BONUS AMOUNTS UNPAID PRIOR TO
THE RESTRUCTURING.
THIRD ANNIVERSARY OF RESTRUCTURING ONE-FOURTH (1/4) OF THE TOTAL OF ALL
RETENTION BONUS AMOUNTS UNPAID PRIOR TO
THE RESTRUCTURING.
FOURTH ANNIVERSARY OF RESTRUCTURING ONE-FOURTH (1/4) OF THE TOTAL OF ALL
RETENTION BONUS AMOUNTS UNPAID PRIOR TO
THE RESTRUCTURING.
----------
(1) This amount will be paid in full if no restructuring takes place prior to
the Payment Date for any particular year. If, however, a Restructuring occurs
prior to the Payment Date for any particular year, the Restructuring Bonus for
that year shall be pro rated based on the timing of the Restructuring. The
Restructuring Bonus shall be calculated by dividing the number of days in that
year prior to the Restructuring by three-hundred and sixty-five (365), and
multiplying that number by the Retention Bonus Amount for that year. For
example, if the Restructuring occurs on October 15, 2002, the Restructuring
Bonus would be calculated as follows: First, the number of days in 2002 prior to
the Restructuring, two-hundred and eighty-eight (288), would be divided by
three-hundred and sixty-five (365). Second, this number would be multiplied by
One Million, One Hundred Twenty Thousand, Seven Hundred Sixty-five Dollars and
Ninety-six Cents ($1,120,765.96). The resulting Retention Bonus for 2002 would
be Eight Hundred Eighty-four Thousand, Three Hundred Thirty Dollars and Forty
Cents ($884,330.40).
14
DESCRIPTION OF EXECUTIVE LOAN
Promissory Note, dated December 31, 2001, as amended and restated as of July 14,
2002, by Xxxxxx X. Xxxxxx in favor of Xxxxxxxx Communications Group, Inc., for
the payment of the principal sum of Five Million, Six Hundred Three Thousand,
Eight Hundred Twenty-nine Dollars and Eighty-Two Cents ($5,603,829.82), plus
interest as set forth in the Promissory Note and the Agreement.
